Citation Nr: 9817170
Decision Date: 06/03/98 Archive Date: 06/15/98
DOCKET NO. 90-49 640 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUES
1. Entitlement to service connection for residuals of trauma
to ring finger.
2. Entitlement to service connection for refractive visual
error.
3. Entitlement to service connection for otitis externa.
4. Entitlement to service connection for sinusitis.
5. Entitlement to service connection for conjunctivitis.
6. Entitlement to service connection for cataracts.
7. Entitlement to service connection for lymphocytosis, as
secondary to the service-connected hemorrhoid disorder.
8. Entitlement to service connection for leukopenia, as
secondary to the service-connected hemorrhoid disorder.
9. Whether new and material evidence has been submitted to
reopen the veteranís claim of entitlement to service
connection for a disorder of the lumbar spine.
10. Whether new and material evidence has been submitted to
reopen the veteranís claim of entitlement to service
connection for deviated nasal septum.
11. Whether new and material evidence has been submitted to
reopen the veteranís claim of entitlement to service
connection for duodenal ulcer disease.
12. Whether new and material evidence has been submitted to
reopen the veteranís claim of entitlement to service
connection for residuals of hepatitis.
13. Whether new and material evidence has been submitted to
reopen the veteranís claim of entitlement to service
connection for athleteís foot.
14. Entitlement to an increased rating for hemorrhoids,
currently rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
J. A. McDonald, Counsel
INTRODUCTION
The veteran served on active duty from December 1954 to
December 1977. This case comes before the Board of Veterans'
Appeals (hereinafter Board) on appeal from the Department of
Veterans Affairs (hereinafter VA) regional office in
Albuquerque, New Mexico (hereinafter RO).
In March 1995, the veteran was informed that upon review of
his file, it appeared as though his case may have been
tampered with by an attorney who had handled his case. In
this regard, the Board remanded the veteranís case in April
1996, noting that at the time of the purported tampering, all
of the veteranís service medical records had become
disassociated with the veteranís claims file. Attempts were
made by the RO to secure additional or duplicate service
medical records; however, it was noted that alternate methods
to obtain these records were futile. The Board therefore,
remanded the case to the RO to develop additional evidence
under a heightened duty to assist the veteran. See OíHare v.
Derwinski, 1 Vet. App. 365, 367 (1991).
In response to the April 1996 remand, the RO accomplished the
development as requested. In the supplemental statement of
the case issued in December 1997, the RO noted that the
service medical records were missing from the claims files.
The veteranís appeal was returned to the Board. The
veteranís original service medical records are now associated
with the claims file.
In prior Board remands, the issues of entitlement to service
connection for hypertension and Graves disease were referred
to the RO for consideration. However, at the time of the RO
disposition of these matters, the veteranís service medical
records were not of record. As noted above, the veteranís
service medical records have now been associated with the
claims files. As such, the RO should readjudicate these
issues based on the current record, to include the veteranís
service medical records.
In a statement dated in June 1989, the veteran raised the
issues of entitlement to service connection for several
disorders, to include a right knee disorder and dental
problems. In June1989, the RO requested the veteran to
submit additional evidence. In October 1989, the RO informed
the veteran that this claim for benefits had been denied
because he had not furnished the requested evidence.
Thereafter, the veteran filed a notice of disagreement to
this action in April 1990. Although appellate action has
been initiated by the filing of the notice of disagreement,
the RO has not provided the veteran with a statement of the
case as to these issues. See 38 U.S.C.A. ß 7105 (West 1991);
38 C.F.R. ßß 19.26, 19.29 (1997). As such, these issues are
referred to the RO to provide the veteran with a statement of
the case and instructions for filing a substantive appeal.
38 C.F.R. ß 19.30 (1997). It is further requested the RO ask
the veteran to specify the dental problems for which he is
claiming service connection, to include dental trauma.
REMAND
As noted above, it appears as though evidence pertaining to
the veteranís appeal may have been tampered with prior to
1995 by an attorney who had previously handled his case. At
the time of the purported tampering, all of the veteranís
service medical records became disassociated with the
veteranís claims file. Unsuccessful attempts were made by
the RO to secure additional or duplicate service medical
records. In the supplemental statement of the case issued in
December 1997, the RO noted that the service medical records
were still missing from the claims file. However, the
veteranís original service medical records are now associated
with the claims files. The United States Court of Veterans
Appeals (hereinafter Court) has stated that ď[i]n reviewing
a benefits decision, the [VA] must consider the entire
record, all of the evidence, and all of the applicable laws
and regulations.Ē See Schaper v. Derwinski, 1 Vet. App.
430, 434 (1991). Moreover, as additional evidence has been
obtained and associated with the claims files, this evidence
must be viewed in light of all of the evidence of record, to
include the now associated service medical records. Id.; see
also Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
The Board regrets the delay resulting from this Remand.
However, in view of the possible tampering of the evidence
and the receipt of the service medical records, the Board
finds that this action is required in order to protect the
veteranís right of due process.
Accordingly, the case is REMANDED for the following actions:
1. The RO should inform the veteran that
he has the opportunity to submit any
additional evidence and arguments in
support of his claims. See Quarles v.
Derwinski, 3 Vet.App. 129, 141 (1992).
2. It is requested that the RO
readjudicate the issues in appellate
status based on a review of the entire
record, to include the recently located
service medical records.
If any issue remains denied, the veteran and his
representative should be provided with a supplemental
statement of the case and given an opportunity to respond.
The case should then be returned to the Board for further
appellate consideration.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veteransí Benefits Improvements Act of 1994, Pub. L.
No. 103-446, ß 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
ß 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBAís ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the regional offices to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
ROBERT P. REGAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. ß 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. ß 20.1100(b)
(1997).
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